Advisory Opinion No. 95-11

Interpretation Of The Terms “Representative Of A
Manufacturer” And “Salesperson” As Used In The
Definition Of Lobbying

The definition of lobbying excludes “communications by a representative of a manufacturer or by an employee of the registered client lobbyist which employee acts as a salesperson and does not otherwise engage in lobbying regarding any administrative action.”  According to regulations drafted by the Commission and approved by the Legislature, the terms “representative of a manufacturer” and “salesperson” are to be construed according to their ordinary and customary usage.  Regulations of Conn. State Agencies, §1-92-42b.  In response to many questions raised, State Ethics Commission Attorney Marianne Smith has asked how and/or whether these terms may be applied to:  (1) high-level corporate officers or employees who interact with state agencies; (2) corporate employees whose duties include both presentation of products and/or services to state agencies and legislative lobbying activities, and; (3) individuals who are not corporate employees but rather are hired by the corporation on an independent contractor basis, and whose duties include both presentation of products and/or services to state agencies and lobbying activities.

Turning to the first group of individuals, at the time that these regulations were being drafted, the State Ethics Commission considered and rejected the idea that the term “salesperson” should include senior management and/or those with an equity interest in a business, who communicate with an executive branch agency.  By “salesperson” or “representative of a manufacturer,” the statute means individuals whose duties ordinarily and customarily involve covering an assigned territory on a routine basis, visiting potential customers on these routes and attempting to interest the customers in corporate products or services.  The terms do not denote individuals who set corporate policy or are involved in substantive corporate decision-making.

At times, of course, the duties of a high-level corporate officer or employee may include those of a salesperson, but that overlap in responsibilities does not transform a corporate executive into a salesperson or manufacturer’s representative.  When performed by such high-level individuals, these activities will, therefore, constitute lobbying unless they fall under a different exception to the definition of lobbying.  See, e.g., Regulations of Conn. State Agencies §§1-92-42a(a)(1)-(3), 1-92-42a(d), 1-92-42a(e), which limit the application of the definition of administrative lobbying.  Consequently, if a corporate executive spends a total of $1000 or more of his or her time (calculated on a pro rated basis) lobbying and in furtherance of lobbying, whether at the legislature or an executive branch agency, he or she must register as a lobbyist.[1]

Similarly, corporate employees who lobby the General Assembly and also market corporate products or services to state agencies may not in general rely on the exception for salespersons and manufacturer’s representatives to exclude these latter activities from the definition of lobbying.  A corporate lobbyist may perform certain sales functions, but his or her activities will be presumed to fall within the definition of “lobbying” unless the individual can demonstrate that his or her job fits the ordinary and customary definition of salesperson or manufacturer’s representative, as described above.

The same reasoning applies with even greater force to an outside lobbyist who interacts with a state agency on behalf of a corporation.  One of the fundamental purposes behind the expansion of the definition of administrative lobbying was to regulate the “door opening” which takes place when an influential individual becomes involved, on behalf of a client, in the state contracting process.  To allow such an individual to classify himself or herself as a salesperson or manufacturer’s representative, thereby automatically excluding all sales activity from lobbying, would subvert the goal of the law.

Finally, if, as an adjunct to sales activities, a salesperson or manufacturer’s representative takes action to affect legislation or the policies, rules or regulations of a state agency, under both the prior and the current lobbying definitions, he or she is lobbying and may be required to register with the State Ethics Commission.

By order of the Commission,

David Nassef
Chairperson